Western & A. R. R v. Fowler
| Citation | 47 S.E.2d 874 |
| Decision Date | 06 May 1948 |
| Docket Number | No. 32016.,32016. |
| Court | United States Court of Appeals (Georgia) |
| Parties | WESTERN & A. R. R. v. FOWLER. |
Rehearing Denied May 31, 1948.
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Syllabus by the Court.
1. (a) Negligence may be shown by circumstances as well as by direct testimony, and a jury may in some instances-presume negligence from the mere happening of an event. In such a case all the circumstances and surroundings accompanying the event should be considered, and if it is such an event as in the ordinary course of things would not have occurred if the defendant had used ordinary care, negligence may be presumed, and place upon the defendant the burden of explaining the cause of the occurrence. See Central of Georgia R. Co. v. Blackman, 7 Ga.App. 766 et seq., 68 S.E. 339.
(b) There is some evidence to support the verdict. It has the approval of the trial judge. It will therefore not be disturbed by this Court as to the general gounds of the amended motion for a new trial. See Code § 70-202 and cases annotated under catchwords "Any evidence" and "Approval."
2. In an action against a railroad company for personal injuries sustained by a passenger occasioned by a derailment of the train wherein the petition, undemurred to, alleges that the defendant was negligent in that said train, without the interference of a third party or outside agency, was caused to leave the tracks on which it was running and become wrecked beside the tracks, and where the evidence shows that the train was being operated by a servant of the defendant, its engineer, and was proceeding in an ordinary manner when it suddenly and without the interference of a third party or outside agency, left the tracks on which it was running and became wrecked beside the tracks, it is not error for the court to charge the jury that if they find that the train in question, without the interference of any third party or outside agency was caused by the defendant to leave the tracks on which it was running at the time and place in question and become wrecked beside the tracks and that if they found this was negligence and the proximate cause of the plaintiff's injuries, if any, then it would be their duty to return a verdict for the plaintiff unless they should find he is barred from a recovery by some other rule of law which the court has given or will give in charge.
3. In determining whether or not an excerpt from the charge of the court is erroneous the same must be construed with the charge in its entirety as conveying to the jury that meaning which the jury must necessarily have understood it to convey. If the excerpt is reasonably susceptible of two constructions, the sense in which it must have been understood by the jury may be determined from other provisions of the charge. See Garvin v. State, Ga. App, 47 S.E.2d 192; Georgia Ry. & Power Co. v. Shaw, 40 Ga.App. 341(1), 149 S.E. 657.
4. A party will not be heard to complain of instructions given at his request. See Laing v. Bodiford, 25 Ga.App. 460, 103 S.E. 743; Welch v. State, 49 Ga.App. 380, 389, 175 S.E. 598; Coleman v. State, 141 Ga. 737(4), 82 S.E. 227.
5. It is proper for the trial judge to charge principles of law applicable to the case that are supported by the pleadings and the evidence.
6. The excerpt from the charge complained of in Special ground VIII of the amended motion for a new trial is not error for the reasons set forth in the 6th division of this decision.
7. That part of Special ground VII complaining of an excerpt for a charge of the court relating to the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq, and the excerpt from the charge of the court relating to said Act contained in Special ground IX of the amended motion for a new trial, show no cause for the grant of a new trial for the reasons set forth in the 7th division of this decision.
8. The qualifications of expert witnesses are addressed to the sound discretion of the court, their opinions, on questions of science, skill, or like questions shall always be admissible provided they are based on facts supported by other witnesses and the weight thereof is a question for the jury. See Hines v. Hendricks, 25 Ga.App. 682, 688, 104 S.E. 520; Southern Ry. v. Wes-singer, 32 Ga.App. 551, 124 S.E. 100, and Code § 38-1710; McClendon v. State, 7 Ga.App. 784(1), 68 S.E. 331.
9. Grounds of a motion for a new trial complaining of the refusal of the court to allow witness to answer a certain question of counsel must disclose the expected answer and that the judge was informed of it. See Garrett v. State, 20 Ga.App. 749, 750, 93 S.E. 232; Pelham Phosphate Co. v. Daniels, 21 Ga.App. 547, 553, 94 S.E. 846; Smith v. State, 119 Ga. 113(1), 46 S.E. 79.
10. It is not error for the trial court to refuse a request to charge when the subject matter thereof is fully covered by the general charge.
11. Where the amount of a verdict is amply supported by the evidence and has the approval of the trial judge on a motion for a new trial, the same will not be held to be excessive by this Court.
Error from Superior Court, Cobb County; J. H. Hawkins, Judge.
Action by Thomas Gordon Fowler against Western & Atlantic Railroad for injuries alleged to have been sustained by plaintiff while a passenger on defendant's train occasioned by derailment of the train. To review a judgment for plaintiff, the defendant brings error.
Affirmed.
See also 75 Ga.App. 156, 42 S.E.2d 499.
The defendant in error, Thomas Gordon Fowler, hereinafter referred to as the plaintiff, sued the Western & Atlantic Railroad, the plaintiff in error, herein, but referred to hereinafter as the defendant, for the sum of $25,000 for damages growing out of personal injuries alleged to have been sustained by him on account of a train derailment occurring on said railroad north of Marietta on the morning of September 25, 1944.
The petition of the plaintiff alleged facts substantially as follows: That on September 25, 1944, and for sometime prior thereto, he was an employee of the defendant; that he was employed as a welder's helper and was earning approximately $225 per month; that he boarded a southbound train of the defendant at Resaca, his home, at about 5:10 A.M.; that as an employee of the defendant he was riding on a pass; that as the train reached a point near an overhead bridge north of Marietta, it suddenly and without warning became derailed and wrecked, and plaintiff, who was riding in the baggage car, was seriously, painfully, and permanently injured in the derailment and wreck.
Defendant was negligent in the following particulars and said negligence contributed to and proximately caused plaintiff's injuries: 7. Defendant was negligent in that said train, without the interference of a third party or outside agency, was caused to leave the tracks on which it was running and became wrecked beside the tracks at said location; 8. defendant was negligent in that the right intermediate driving wheel was so worn that it was loosened on its axle before the accident and was loose at the time the accident occurred; 9 defendant was negligent in that the driving wheels and driving machinery of said locomotive were generally worn, defective and out of repair, the driving wheels being so worn that the driving rods in operation tended to cause the wheels to wobble and render them likely to spread the rails of the track or jump the rails of the track and cause a derailment; 10. said failure to have said locomotive in repair was a violation of the Federal Safety Appliance Act and constituted negligence as a matter of law; 11. defendant was negligent in that said train was being operated at an excessive rate of speed around a curve, it being operated at the time at a speed of about 55 or 60 miles per hour; 12. said train at the time was being operated in interstate commerce, that is to say, on its regular run it had come from outside the State of Georgia into the State of Georgia in the carrying of passengers.
The petition then alleged the detailed injuries sustained by the plaintiff as a result of the derailment and wreck substantially as follows: A cut on the right arm; a fractured rib; chin, nose, lips, neck and chest badly cut and lacerated; frontal bones of upper and lower jaws fractured; several teeth broken; fracture of the transverse process of two of thelumbar vertebra; back sprained; and shock to the entire nervous system.
The petition further alleged that as the direct and proximate result of these injuries, he has suffered and will continue to suffer permanently great pain and will be disabled permanently; that he is unable to do any work requiring considerable physical effort; that his left arm, left leg and thigh are partially paralyzed; that he has suffered the partial loss of the sense of feeling in his left hand and arm up to the elbow; that he has been unable to do any work since he suffered these injuries; that he will not be able during the remainder of his life to resume his former occupation, and that at the time he suffered his injuries he was 38 years of age with an expectancy in life of 28.96 years or more.
The answer of the defendant denies that the plaintiff was engaged as an employee at the time of the wreck; it admits that the plaintiff had gotten aboard its passenger train at Resaca and was travelling southward in the baggage car; it says that plaintiff had no right under the alleged pass, or under a ticket to be in the baggage car, and should not have been in the same at the time and place but should have been in a safe, comfortable passenger coach seat further removed from the locomotive than the baggage car.
The answer then denies paragraphs 7, 8, 9, 10, 11 and 12 of the petition, and says that the defendant exercised all reasonable care in the premises.
The answer of the defendant denies that the plaintiff was injured as alleged and says upon information and belief that the plaintiff, on the date of the wreck, was suffering from a disease and from ailments and...
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